international law essay

Hydropolitics of the Indus Water Treaty

There are 261 international rivers in the world and the total surface of around seventy percent of the earth is covered with water. Be it Americans and Mexicans, the people surrounding the Nile or India and Pakistan, water has been a major cause of political fissures. It is now being predicted that future wars will be fought over water – the only scarce resource which has no substitute. The desire to control water resources to cater to the ever growing needs of the burgeoning populations, and the poor management of existing resources on the other hand, is a breeding ground for growing international conflicts. In such a precarious global environment, the need for joint cooperation, shared water resources and effective management has increased manifold. One such example of a successful conflict resolution effort is the Indus Water Treaty signed between two hostile neighbors - India and Pakistan. This research paper endeavors to understand the tussle between India and Pakistan over water by shedding light over the Indus Water Treaty and its implications. It will analyze the benefits and the disadvantages of the treaty and then attempt to conclude whether the treaty needs to be abolished, or reformed, and the ways in which it can be made more mutually beneficial.

The enmity between India and Pakistan has prevailed ever since the two countries got independence from Great Britain and divided in to two nations in 1947, creating deep political fissures. The water issue has become an arena for conflict ever since. The importance of water can be understood by recognizing how vital it is to the agrarian economy of both the nations; the livelihood of millions of people makes the stakes even higher. Due to the semi-arid climate of the Indus Basin, agriculture in the area is profoundly dependant on irrigation. At the time of partition, Punjab was divided in to eastern and western halves; India got the province’s irrigation headworks while Pakistan got the canals. As a result, Pakistan’s economy - being heavily dependent upon irrigation – was rendered dependent on canals that were controlled by India. Pakistan could virtually become a desert if deprived of the water it crucially depended upon [1] .

With the signing of the Indus Water Treaty in 1960 between India, Pakistan and the World Bank, the matter was finally settled after 13 years of continued tension. Although, some perceive the treaty to be ‘mirroring the political landscape of the time by dividing the Indus basin between two countries rather than provide for meaningful cooperative management or sharing’, its greatest strength lies in the fact that it has ‘managed to moderate the worst impulses of the two countries vis-a-vis each other’ [2] . It gave India the rights to the three eastern rivers; Sutlej, Beas and Ravi, whereas Pakistan got the three western rivers; Jhelum, Chenab and Indus. India was also given limited usage of the three western rivers. Pakistan got 80% of the share of the Indus system of rivers with a mean flow of 136 MAF as compared to India’s 33 MAF and was also promised financial and technical support to build the infrastructure - storage facilities and link canals - on these rivers to compensate for the loss of water from the eastern rivers. The treaty also allowed for future cooperation and catered to dispute settlement through the Indus Commission, neutral experts and the Court of Arbitration. [3]

This treaty is seen to be one of the few examples of a successful arrangement on an international water conflict. Had this agreement not been reached, the two countries would have still been immersed in deep clashes, which the newly independent economy of Pakistan could not afford. But the question that has been asked repeatedly is if the treaty was actually a triumph or just a triumph of the lesser evils. [4] To answer that, this paper will first analyze the advantages in more detail and then move on to the disadvantages that Pakistan has faced as a result of this treaty.

The treaty is seen to be mutually beneficial; it lays down the rights and obligations of both India and Pakistan, and has led to cooperation from both sides, withstanding the test of time. Along with the recognition of the common interests of both sides, it also laid down ground rules for future cooperation and conflict resolution [5] . The success of the treaty can perhaps best be judged by the fact that it has survived through wars with neither side attempting to opt out of it.

As a result of this treaty, one of the many potential conflicts between Pakistan and India has been effectively averted. The two countries have fought almost three wars on Kashmir and had the water dispute not been settled successfully, there would have been many more. Moreover, India and Pakistan received over US$ 100 million through the Indus Basin Development Fund (IBDF) and this massive aid for development would have been withheld had the refused to cooperate. Even if financial implications had not been a substantial consideration, the decision to cooperate was based on the concept of water rationality. Water rationality is a state’s decision to secure its water supply for the long run in terms of quantity and quality. And the decision to sign the treaty seemed rational to both countries as Pakistan felt threatened by India’s upstream developments on river Sutlej and India sought to eradicate poverty by improving irrigation. And hence, fighting a war on water would have guaranteed neither financial assistance nor future supply of water [6] .

Although the treaty has managed to forestall potential conflicts, it is also perceived as detrimental to both nations by some factions of the society. Many new issues have been brewing and the treaty and its conflict mechanisms have failed to adequately cater to them. The need for new storage facilities, changing economic and environmental conditions, water scarcity, growing resentment from the state of Jammu and Kashmir and the ambiguous nature of the treaty are some of the problems that this paper will be highlighting.

Firstly, disputes on controversial projects being undertaken have arisen, hindering water development strategies. Pakistan claims that India has stopped the water of Chenab beyond the provisions of the treaty and opposes construction work on technical grounds. The implementation mechanism of the treaty are slow in reacting to recent issues that have arisen; such as the building of the Baglihar dam on river Chenab by India which is being seen as an attempt to control the flow of water to Pakistan. The reservoir would result in a 26-28 percent decrease in Pakistan’s water supply in winters, adversely affecting the winter Rabi crops. Being a lower riparian, Pakistan could become a victim of India’s attempt to impound the water supply or release it in excess and flood Pakistan in times of war or excess rains as witnessed in the 2010 floods. Hence, Pakistan could suffer adversely in times of drought or heavy floods. Moreover, the initial filling of the dam caused Pakistan a loss of two lakh acre feet as the flow of water decreased from the allowed 55,000 cusecs to 38,000 cusecs. Even though Pakistan registered the claim, India blamed it to be a falsification of facts [7] . These claims cannot be validated as the treaty does not provide for a system of representation and a technical monitoring system that could be used for the surveillance of water levels at all times and would help in providing solid proof to avoid any misrepresentation of facts. According to the Pakistani Water Commissioner Jamat Ali Shah, “India is neither willing to compensate Pakistan's massive water losses nor consider bringing any change to the physical structure of the dam." [8]

The issue of the Wullar Barrage is another such controversial issue that has emerged due to the ambiguous nature of some of the clauses of the Indus Water Treaty. Pakistan claims that both dams, Baglihar and Wullar, go against the provisions of IWT as they will hinder the flow of water into Pakistan. It is claimed that the height of the dam is more than what the IWT allows. India, on the other hand, maintains that it was allowed limited domestic, non consumptive, agricultural and hydroelectric use of the western rivers along with a storage limit of 3.6 MAF and hence, is not violating any principles [9] . Although the Indian High Commissioner states India has not been using up to the allowed level, Pakistan believes that is exploiting the terms laid down in the treaty [10] . India also asserts that Pakistan would be able to benefit tremendously by the barrage as it would regulate the water supply to Mangla dam, benefit the irrigation canal system and increase the capacity for electricity generation. Conversely, Pakistan negates this view by stating that any such construction is a violation of the Article I (11) of the treaty as it prohibits “any man made obstruction that may cause a change it the volume E of the daily flow of waters". Article III (4) also bars India from storing any water or constructing storage works on the Western rivers given to Pakistan. On the contrary, India is allowed ‘incidental storage works’ on the Pakistani rivers if the storage capacity of the project is less than 10,000 acres of water and if Pakistan approves the design. The Wullar dam, however, is a 30,000 acre project. Pakistan also fears that this barrage would magnify the risks it faces in an event of a drought or flood. Secondly, it also has military implications as it would grant greater mobility to Indian troops by giving them easier access to Pakistan [11] . Dependent upon interpretation, the ambiguous nature of the treaty on providing India limited use of the western rivers has resulted in most conflicts, and subsequently, a deadlock in negotiations:

“While India is not permitted to build dams for water storage purposes (for consumptive uses) on the western rivers passing through India, it is allowed to make limited use of waters including run of the river hydroelectric power projects. The Bagilhar project, the Kishenganga project as well as Wullar that come in this category are all being opposed by Pakistan on the narrow definition as to what it means by storage." [12]

It is observed that the instruments of dispute settlement have also failed to achieve much. Pakistan believes that Permanent Indus Commission is ineffective and India’s insistence to approach it is a ‘mere rhetoric’ as the Indian Commissioner himself admitted to not having the mandate to resolve such issues. Pakistan unilaterally took the matter to neutral experts and arbitration but, due to lack of expediency, the step failed to achieve much [13] .

In addition to the issues Pakistan and India are facing, the Indian state of Jammu and Kashmir also feels marginalized by the treaty. It is a common belief that the state, being a riparian, was treated unfairly by not being taken into consideration by the treaty, resulting in a loss of Rs. 6500 crore annually. The province will continue to press for the dissolution of this treaty unless future talks do not show some flexibility when dealing with the province’s rightful claims to water [14] .

Environmental politics, as a trans-boundary issue, have also recently entered the picture of the global political environment. The main concern lies regarding the sustainability of the existing ecosystems that are vital for civilizations. Water scarcity and water resource management lie high on the environmental security agenda. As water issues are highly ‘politicized and securitized’, the magnitude of environmental concerns are somewhat sidelined [15] . Being a lower riparian, Pakistan’s ecology and biodiversity can suffer in times of flooding as seen in 2010. According to environmentalists, ‘the Indus Delta is dependent on silt laden freshwater discharge from the Indus River’ but as a consequence of the decreased flow of freshwater, mangrove forests have shrunk, and the quality of water has worsened and exacerbated health problems. There has been a loss of agricultural land leading to desertification of affected areas and a loss of livelihood as a lot of coastal people are dependent on fisheries in the Indus Basin. As the amount of freshwater decreases, sea water flows in to take its place, leading to a ‘nutrient imbalance in the ecosystem’ [16] . Global warming has upset the environmental balance and as the Himalayan glaciers shrink, so does the quality and quantity of water in the area [17] .

According to the Ministry of Water and Power of Pakistan, ‘the environmental catastrophe due to total stoppage of flows from rivers Sutlej and Ravi is being termed as annihilation of a civilization’ [18] . On such grounds of continuous environmental changes, the treaty needs to be re-evaluated and examined or it could have catastrophic results on the ecosystem and adversely affect the lives of millions of people in the sub-continent.

Most crucial is the fact that Pakistan’s water supply has plunged from 5,000 cubic meters per person to 1,420 cubic meters. As both countries are faced with rapid population growth, water levels are growing closer to the ‘threshold at which water shortage becomes an impediment to economic development and a hazard to human health’. As most of the water originates from Kashmir, the political tension between the nuclear powers will also be exacerbated unless confidence building measures are undertaken and the treaty is re-examined [19] .

Such matters are of deep concern for both nations. Multi-billion dollar projects are stuck in midway as no significant agreement has been reached upon. The utility of the treaty diminishes day by day unless a mechanism for swift resolution of disputes is figured out [20] .

But having highlighted the costs and benefits of the treaty to Pakistan, it is noteworthy that the treaty has had more of a positive impact and rescinding the treaty would be tantamount to opening a Pandora’s Box of political and hydropolitical issues [21] . The inadequacies of the treaty do not allow it to be maintained in its present form and to address them; the treaty needs to be re-evaluated. Negotiations will, however, be contingent upon improving bilateral relations and the trust deficit between India and Pakistan.

With constantly changing conditions – climate and ecological change, population growth and ongoing development - treaties are seemed to be rigid and inflexible as they can only be modified under certain limited conditions. This fact is taken to be a drawback for international water treaties between riparian states. If there are unforeseen circumstances and the treaties do not allow for flexibility, states benefit more by opting out of it. But taking the example of the dispute between Hungary and Czechoslovakia, the ICJ makes the termination of a treaty very difficult. There is continued pressure on both sides to abolish or reform the treaty to meet the current requirements of both India and Pakistan [22] .

Kuldip Nayyar has recently suggested all six rivers should be commonly shared between the two nations. Although the solution seems fair and simplistic, in reality it is not so. This suggestion was also given at the time the treaty was originally signed but not implemented due to lack of viability. By having joint control, Nayyar suggested an integrated economic union with inter-regional trade and economic ties. Such a utopian scenario would only be possible if the political issues between India and Pakistan are sorted out. Till then, joint sharing of all rivers would be next to impossible as both countries have deep rooted enmity. And therefore, reforming the IWT to some extent remains the best option.

With rising industrialization, depleting water levels and power shortage, water disputes become more acute with each passing day. There needs to be further joint cooperation between the two countries. Being a water stressed country, Pakistan needs to utilize the Indus Basin’s resources fully. Further cooperative measures could explore into the possibility of allowing more storage facilities on the upper western rivers to counter the growing shortage. In the following paragraphs, I will draw attention to the possible reforms that can be made in order to make the treaty more viable and suitable to the current economic, political and ecological scenario.

States are free to amend a treaty if it ceases to cater to their interests with changing conditions and to counter that, there is a need to make the IWT more adaptive and flexible. A ‘general framework’ agreement, i.e., an agreement that allows for periodic reviews on water management, can be implemented. A joint commission could be made to undertake these periodic reviews. Other than that, the agreement can also have clauses to deal with special circumstances such as drought or flooding; in case one country faces drought, it can consume more water but make up for that usage in the following years. A classic example of such a treaty is the one between USA and Mexico regarding the Rio Grande. Furthermore, a joint institution can be made with the authority to respond to variations in circumstances and propose amendments, making the treaty more adaptive to changes. The institution, however, needs to be financially secure and have stable political conditions to function.

According to a special report of the News International, there needs to be a distinction drawn between the letter and spirit of the agreement with inefficiencies in water usage, wastage and climatic changes. The report concluded that both countries need to build upon the spirit and strength of the treaty rather than using it as a dividing tool by politicizing it. Pakistan stands to lose much if it tries to back out of the treaty as the current political scenario of the country cannot afford to face another major setback [23] .

Indian scholar and writer PR Chari believes that “Negotiating an Indus Water Treaty 2 would be a huge Confidence Building Measure (CBM) as it would engage both countries in a regional economic integration process." Dr Robert G. Wirsing believes the treaty has inherent weaknesses and "the solution to water disputes is heavily tied with the fate of Jammu and Kashmir." The grievances of the state of Kashmir need to be taken into account and addressed and further talks need to be based on a political solution. The viability of the Chenab formula proposed by Vajpayee could be a starting point as it would tackle both the political and water problems [24] .

In response to the Indian High Commissioner’s speech on the treaty, his Pakistani counterpart stated that Pakistan has been pushing for the ‘installation of a telemetry system for measurement and communication of real time data of river flows’. Quality of data and accessibility to it has been a breeding ground for further conflict. To avoid claims of non-transparency and unfair usage from either side, the system should be implemented as soon as possible. India needs to be more forthcoming and candid with flow data and its proposed plans. There needs to be full and timely notices from each sides of the projects they are going to be undertaking and the time lag before decision making needs to be reduced. For that, the powers of the Permanent Indus Commission need to be augmented so there can be a timely and cost efficient solution for all future problems to arise. Pakistan also wishes for a ‘joint watershed management and joint commissioning of environmental studies to address environmental concerns including deforestation, water pollution and climate change’ [25] .

Most importantly, instead of just playing the blame game and sensationalizing hydropolitics, both countries need to use their share of the water resources optimally. According to a report by the United States of Peace, ‘water problems in Pakistan result largely from poor water management, but the consequences of management failure are accentuated, both materially and politically, by international and subnational hydropolitics’ [26] .

The most pressing problem for Pakistan is the issue of salinity, low water productivity and water losses of up to 30%. In order to meet the estimated water requirements, Pakistan needs to raise storage capacity and enhance existing infrastructure – an institutional issue. Instead of focusing on large controversial dams like the Kalabagh dam, the government needs to plan ahead and start work on small scattered dams. Water conservation projects are more economically, environmentally and ecologically efficient that water storage projects. Irrigation techniques need to be updated and improved; sprinkler and drip irrigation might cater to the problem of low water productivity.

Having summarized the implications of the treaty, the importance of more cooperation and a further re-evaluation of the treaty are highlighted. The issue could threaten the survival of millions of people and the potential for wars on water remains alarmingly high. To counter that, it is in the interest of Pakistan and India to regulate their relations with regard to water resources. In conclusion, the Indus water needs to be made more flexible to be able to adapt to the emerging conflicts. The technological basis of the treaty needs to up to date: a telemetry system needs to be installed so both states can keep a check on the water levels and not blame each other for misrepresenting facts baselessly. The powers of the Indus Commission need to be made secure as to deal with the concerns of all the parties involved. The ecological health of the area must not be compromised and there needs to be greater transparency on both sides. The concerns of the Kashmiri people need to be addressed as they are an important stakeholder in matters concerning the future of civilizations and in order to find a mutually beneficial solution, the political tussle over Kashmir needs to be resolved. But most importantly, both states need to focus more on water conservation so the ample gifts and benefits of the Indus can be maximized for all generations to come.

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